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Irby v. Warden, Broad River Correctional Institution

United States District Court, D. South Carolina

April 3, 2015

Frederick Alphonso Demetre Irby, #339195, Petitioner,
v.
Warden, Broad River Correctional Institution, Respondent.

REPORT AND RECOMMENDATION

SHIVA V. HODGES, Magistrate Judge.

Petitioner Frederick Alphonso Demetre Irby is an inmate at the Broad River Correctional Institution of the South Carolina Department of Corrections who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment and return. [ECF Nos. 16, 17]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by January 5, 2015. [ECF No. 18]. The matter having been fully briefed [ECF Nos. 20-23], it is ripe for disposition. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion for summary judgment be granted and Petitioner's request to stay be denied.

I. Factual and Procedural Background

Approximately a year and a half after the victim was fatally shot in the back of the head with a.38 caliber weapon, the Greenville County cold case unit was provided a tip implicating Petitioner and a codefendant, Vernon Hurst. [ECF Nos. 17-1 at 14-16; 20-4]. Hurst gave a statement that detailed his and Petitioner's visit to the victim's home to purchase marijuana. Id. Hurst stated that he left the victim's home, heard a gunshot, then saw Petitioner exit the home with a small bag of marijuana and money. Id. They both got in a car and drove away, and Hurst stated that Petitioner told him that he had shot the victim in the back of the head. Id. Another witness told investigators that he purchased a.38 caliber revolver from Petitioner about a month after the murder. [ECF Nos. 17-1 at 16; 20-4 at 7].

Petitioner was arrested for an unrelated armed robbery of a Family Dollar on October 23, 2007. [ECF No. 17-10]. On November 5, 2007, additional arrest warrants issued for Petitioner on the charges leading to the instant petition, and Petitioner received the return of the arrest warrants on November 6, 2007. [ECF No. 17-11].

Petitioner was indicted by the Greenville County grand jury in December 2009 for murder (2008-GS-23-2701), and armed robbery and possession of a weapon during commission of a violent crime (2008-GS-23-2602). [ECF No. 17-1 at 123-26]. He was represented by H. Chase Harbin, Esq., and on February 9, 2010, he pled guilty before the Honorable C. Victor Pyle, Jr., Circuit Court Judge. [ Id. at 3-27]. Judge Pyle sentenced Petitioner to 30 years for murder, 25 years concurrent for armed robbery, and five years concurrent on the weapons conviction. [ Id. at 25]. Petitioner did not file a direct appeal. [ECF No. 1 at 2].

On April 29, 2010, Petitioner filed an application for post-conviction relief ("PCR") asserting claims of ineffective assistance of counsel and that no evidence connected him to the crime. [ECF No. 17-1 at 28-34]. Petitioner was represented at PCR by E. Scott Sanders, Esq., who filed an amended PCR on July 24, 2011, raising additional grounds of ineffective assistance of counsel. [ECF No. 17-1 at 40-43]. A PCR evidentiary hearing was held before the Honorable D. Garrison Hill, Circuit Court Judge, on August 2, 2011, at which Petitioner and Attorney Sanders appeared. [ Id. at 44-99]. On August 29, 2011, Judge Hill filed an order of dismissal. [ Id. at 100-108]. Petitioner filed a timely motion to alter pursuant to SCRCP 59(e), [ id. at 109-118], which the court denied with a Form 4 Order on September 27, 2011 [ id. at 122].

Petitioner filed a Notice of Appeal on October 27, 2011. [ECF No. 17-5]. Petitioner was represented by Appellate Defender Wanda H. Carter of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who filed a Johnson petition[1] for writ of certiorari in the South Carolina Supreme Court on or about September 6, 2012, raising the following issue: "Trial counsel erred in advising petitioner to plead guilty as charged because petitioner claimed that he was innocent and pled guilty only to protect others from criminal prosecution." [ECF No. 17-6 at 3]. Attorney Carter stated that the petition was without merit and asked to be relieved as counsel. [ Id. at 8]. Petitioner filed a pro se brief.

Petitioner's appeal was transferred from the South Carolina Supreme Court to the South Carolina Court of Appeals ("Court of Appeals") for disposition pursuant to SCACR 243(1). By order filed July 17, 2014, the Court of Appeals denied the petition for certiorari and granted counsel's request to withdraw. [ECF No. 17-8]. The remittitur issued on August 7, 2014. [ECF No. 17-9].

II. Discussion

Petitioner filed this federal petition for a writ of habeas corpus on September 4, 2014. [ECF No. 1].[2] Petitioner raises the following grounds in his petition:

Ground One: Ineffective Assistance of Counsel
Supporting facts: Letter from Plea Counsel stating that I can't have a copy of Motion of Discovery. During PCR Hearing, Plea Counsel couldn't recollect anything about the case. The Plea Counsel never challenged warrants or indictments and also failed to adequately advise of the strengths and weaknesses of the State's case or possible defenses.
Ground Two: Being detain and continuously held without proper process. Warrantless Arrest - 23-15-60 = SCRCP
Supporting facts: No warrant was presented when a dozen or more Greenville County Police Officers removed me from my residence. I was arrested Oct. 23, 2007 no warrant presented until Nov. 6, 2007. 14 days!!! An illegal search and seizure in which nothing was found that could be considered contraband-illegal-or tools for burgulary, nor firearms
Ground Three: Subject Matter Jurisdiction/Lack of Jurisdiction no "legal" indictments
Supporting facts: (1) Two indictments of the same charges, but neither is legal (2) Never went before Grand Jury only "Rubber Stamped." (3) One indictment is clock stamped but not True Billed and the other is exactly the opposite and has been amended with out notice (4) Violation of Fast and Speedy Trial = Pro Se and no Request for Delays
Ground Four: Brady [3] Violation = Rule 5 SCRCP violation
Supporting facts: (1) Letter from Chase Harbin stating I wouldn't be given a copy of Motion of Discovery (2) Statements missing from discovery until PCR Court (3) In-Camera Motion was ignored by court appointed counsel Chase Harbin (4) Never discussed strengths or weaknesses of State's Case by what was in discovery material

[ECF No. 1 at 5-10] (errors in original).

A. Motion to Stay

In his response in opposition to summary judgment, Petitioner asks the court to stay and hold his habeas petition in abeyance to allow him the opportunity to exhaust his state court remedies on the issues presented in his habeas petition. [ECF No. 20 at 1]. In support of his motion, Petitioner argues that he is a layman and that his counsel did not raise all his grounds in state court, including at PCR, such that now that he is representing himself, he should be permitted to return to state court to pursue claims that his counsel did not.

In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court stated that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." 544 U.S. at 277. The Court further stated that "even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Id.

The undersigned finds that Petitioner is not entitled to a stay in this action. All of Petitioner's claims raised in his habeas petition have been exhausted for the purpose of federal habeas review. See, e.g., S.C. Code Ann. § 17-27-45 (establishing one-year period of limitation on filing of PCR); S.C. Code Ann. § 17-27-90 (providing that all grounds for relief available to an application under this chapter must be raised in his original, supplemental or amended application); Matthews v. Evatt, 105 F.3d 907 (4th Cir. 1997) (noting that South Carolina requires all grounds for relief to be raised in the first PCR). Although Petitioner's claims are technically exhausted, they are procedurally barred from review in federal habeas. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991) (holding that issue not properly raised to the state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas).

Petitioner has not shown good cause for his failure to properly exhaust his claims in state court and has not demonstrated that his claims are potentially meritorious. See Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012) (finding that attorney error during appeals from initial-review collateral proceedings does not constitute good cause for failure to exhaust initial collateral review claims). Accordingly, the undersigned recommends that Petitioner's request for a stay be denied.

B. Standard for Summary Judgment

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.

The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific ...


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